Dismissed

Ravjibhai Prabhudas Patel Since Decd.Thr'Heirs v. Additional Collector and Competent Authority U.L.C.

Gujarat HC6 Jul 2021LPA/94/2008

Case brief

AI extract

What is this about?

The landholder challenged concluded urban land ceiling proceedings, claiming retained possession and an undecided Section 21 application. The court rejected both contentions, upheld the proceedings and affirmed the Single Judge’s judgment. The appeal and connected amendment applications were dismissed, with no order as to appeal costs.

What the court decided

AI extract

Ravjibhai Prabhudas Patel Since Decd.Thr'Heirs Vs… — Land Acquisition | Gujarat HC (2021)

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 94 of 2008

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In R/SPECIAL CIVIL APPLICATION NO. 5460 of 1999

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With

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CIVIL APPLICATION (FOR AMENDMENT) NO. 1 of 2015 In R/LETTERS PATENT APPEAL NO. 94 of 2008

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With

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CIVIL APPLICATION (FOR AMMENDMENT) NO. 1 of 2019 In R/LETTERS PATENT APPEAL NO. 94 of 2008

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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1 Whether Reporters of Local Papers may be allowed YES to see the judgment ?

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2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy YES of the judgment ?

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4 Whether this case involves a substantial question YES of law as to the interpretation of the Constitution of India or any order made thereunder ?

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================================================================

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RAVJIBHAI PRABHUDAS PATEL SINCE DECD.THR'HEIRS Versus

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ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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================================================================ Appearance:

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MR ANSHIN DESAI, SENIOR COUNSEL with MR ZALAK B PIPALIA (6161) for the Appellants

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PRATEEK S BHATIA for the Appellants

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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MR SOAHAM JOSHI, ASSISTANT GOVERNMENT PLEADER for the Respondent

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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MR. JUSTICE B.N. KARIA

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Date : 06/07/2021

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ORAL JUDGMENT

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(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

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This Letters Patent Appeal is directed against the order dated 1.5.2007 of the learned Single Judge ( Coram : R. S. Garg, J. ), who dismissed the Special Civil Application No. 5460 of 1999 in which the proceedings of Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “ ULC Act ”) initiated against the Appellant – Petitioner (landholder), were under challenge.

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The facts as noted by the learned Single Judge in the impugned order are quoted below for ready reference :

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“3. The short facts necessary for disposal of the present writ application are that the petitioner is the owner of the land of surveys no. 350 and 330 admeasuring 1 Acre and 1 Guntha and 2 Acres and 16 Gunthas situated at Manjalpur, Vadodara . On 14.8.76, the petitioner made an application in form-5 under Section 21 of the Gujarat Urban Land [Ceiling & Regulation] Act, 1976 seeking permission to develop the land in accordance with Section 21 of the Act. During pendency of the said

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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application, the State Government/Competent Authority proceeded under Sections 8 and 9 of the Urban Land [Ceiling & Regulation] Act. A final order came to be passed on 29.11.82 . Copy of the said order has not been filed by the petitioner in these proceedings. Appeal No. 1680 of 1994 came to be dismissed by the appellate authority holding that possession of the land in dispute was already taken by the State Government through its Competent Officer, therefore, the appeal deserved to be dismissed. It is to be noted that the order dated 6.11.85 was not challenged before any court or authority as the parties felt content. However, Ravjibhai, son of Prabhudas and Dahyabhai, son of Prabhudas challenged the very same earlier order dated 20.1.83 passed by the Competent Authority, in the very same Tribunal on the ground that their application filed under Section 21 was pending consideration and as such final order could not be passed.

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4. The appellate authority, after referring to the facts observed that in view of the earlier dismissal order, another appeal by the appellant should not normally be entertained. After observing so, to oblige the appellant before it, it observed that there were certain special circumstances which deserved consideration. It observed that the impugned order was ab initio void having been passed disregarding the pendency of application filed under Section 21 of the Act; that the above said fact was not brought to the notice of the appellate authority when Appeal No. 1680 of 1984 was decided and that the said appellant Prabhudas had already expired. It further observed that as regards computation of excess vacant land made by the Competent Authority, there

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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was no valid ground to interfere with the same except that the decision on the application under Section 21 of the Act should have been taken before passing the order. It disposed of the Appeal No.217/87 with a direction that the appeal stands allowed to the extent that the Competent Authority to dispose of the application filed by the declarant under Section 21 of the Act, if the scheme stands sanctioned, suitable modification should be carried out in the impugned order and if the scheme stands rejected, the impugned order will not require any modification. Appeal No. 7/86 , which related to compensation was disposed of with the directions that it should also be governed by the outcome of the decision made on application under Section 21 of the Act. It is to be noted that dismissal of the earlier Appeal No. 1680/84 was not challenged by the petitioner before any forum and similarly, decision made on 5.4.88 in Appeals No. 217/87 and 7/86 was also not challenged before any further forum, which would simply mean that on one side, the first dismissal would stare in the eyes and at the second occasion, order in the interest of the petitioner only would be that if the application under Section 21 of the Act stands allowed, then, final order passed by the Competent Authority would be amended.

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5. On 6th June, 1988 , the petitioner had made some application and thereafter, he yet made another application requesting the authorities to decide his application filed under Section 21 of the Act. It is again to be noted that copy of the said application has not been filed nor annexed in these proceedings, but only reminder has been annexed. When particular documents are not filed in the Court, then, the Court must presume that the

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021

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RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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party not filing the documents is not relying upon the contents of the documents or the Court may presume that production of such documents would have worked against the interest of the party if the said documents were filed by the said party. In either of the case, nonfiling of the said documents, that is, the earlier order passed in Appeal No. 1680/84 , copy of the application seeking exemption under Section 21 of the Act would speak bad and would act bad against the interest of the petitioner.

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6. The petitioner's application filed under Section 21 was disposed of on 31.5.99 . Shri B.S. Patel, learned counsel for the petitioner vehemently submitted that the said application filed under Section 21 of the Act was never decided. A perusal of the order [Annexure:E] would show that the petitioner's prayer for grant of No Objection Certificate in relation to the scheme was not granted. Once such prayer was rejected, then, it would simply mean that the prayer made in the application was rejected.”

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The learned Single Judge dismissed the Writ Petition with a cost of Rs.10,000/-, with following reasons :

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“12. The order dated 5.4.88 runs contrary to the canons of justice and is patently illegal and bad. It is passed by the authority which had no jurisdiction to pass such order. When a provision of law or Statute provides for an appellate forum and such forum is exploited once, then, very same party cannot reutilize the same forum, because, it has already exercised its rights. If the earlier order dated 20.1.83 has attained finality and

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021

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RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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the same was not challenged before any appellate forum, then, the Urban Land Tribunal had no jurisdiction to dilute the effect of the order or modify the effect of the said order. I would be justified in holding that the order dated 15.4.88 could not reserve any liberty in favour of the petitioner to obtain orders on their application filed under Section 21 of the Act.

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13. Assuming for a minute that the order dated 5.4.88 can still help the petitioner, then too, the petitioner would not be entitled to any order under Section 21 in his favour, because, the petitioner lost ownership, lost possession and the property vested free from all encumbrances in the State on 1.1.85 . Once the property is vested in the government and the petitioner is dispossessed, then, the Urban Land Tribunal could not interfere in the matter and say that final order would be subject to the outcome of the application filed under Section 21 of the Act.

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14. As a faint attempt, it was submitted that o n 1.1.85, when possession was taken , the declarant had already expired and as such, possession could not be taken. Unfortunately, this factual dispute was not raised before any authority and dispossession of the petitioners was never challenged before any authority. Legal representatives/successors, if lost their possession illegally, then, they were required to challenge the action of their illegal dispossession. In these collateral proceedings, they would not be allowed to widen the scope of this writ by throwing challenge to their dispossession.

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15. Taking the matter from any angle, I am of the opinion that

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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the petitioner could not make out a case for any interference. The petition deserves to and is accordingly dismissed with costs of Rs.10,000/- [Rupees Ten Thousand] to be paid by the petitioner to the State Government. Rule is discharged. Interim relief, if any, is vacated.”

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While arguing the present Appeal, Mr.Anshin Desai, learned Senior Counsel for Mr.Zalak Pipaliya, learned counsel, mainly submitted two contentions; that in the alleged Possession Panchnama dated 1.1.1985, admittedly the possession of the full land declared surplus under the provisions of the ULC Act was not taken by the Respondent – State Authorities and that remained with the Appellant – landholder and, therefore, on repeal of the law on 30.3.1999 , the benefit of the same should go to the landholder. Secondly, he urged that since Section 21 Application was never decided by the Competent Authority and remained pending upto the date of repeal of law on 30.3.1999 , therefore, the proceedings undertaken by the authority concerned under Sections 8, 9 and 10 of the ULC Act cannot have overriding effect.

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On the other hand, Mr.Soaham Joshi, learned Assistant Government Pleader, submitted that due procedure was adopted under the provisions of the ULC Act and in view of the orders passed under Sections 8(4) and 9 of the ULC Act on 29.11.1982 , the Notification

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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under Section 10(3) of the ULC Act vesting the land in the State free from all encumbrances on 19.1.1984, Possession Notice dated 21.5.1984 and possession through Panchnama Process taken over on 1.1.1985 , the controversy involved in the present case is squarely covered by the various judgments of this Court recently rendered and, therefore, even if it is assumed for the argument sake that Section 21 Application was not decided, though he submitted that the learned Single Judge has noted in the aforesaid quoted Paragraphs that it was so decided, even then such application would abate and no benefit of exemption can be claimed by the Appellant – Petitioner and, therefore, the present Appeal filed by the Appellant deserves to be dismissed.

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Learned counsel for the Appellant has relied upon the following judgments in support of his contentions :

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(1) M/s.Avanti Organisation v. Competent Authority & Additional

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Collector, Urban Land Ceiling Act, Rajkot & Anr. , reported in 1989 (1) GLR 586 .

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(2) Samrathben Manilal Chokshi & Anr. v. State of Gujarat & Anr. , reported in 1994 (1) GLR 203 .

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(3) Savitaben Ramanbhai Patel v. State of Gujart & Others , reported in 1999 (1) GLH 100 .

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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(4) State of Uttar Pradesh v. Hari Ram , reported in (2013) 4 SCC

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280 .

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(5) Mangalsen v. State of U.P. , reported in (2013) 4 SCC 332 .

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(6) Vipinchandra Vadilal Bavishi (Dead) by Legal Representatives

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and Anr. v. State of Gujarat & Others , reported in (2016) 4 SCC 531 .

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Having heard the learned counsel for the parties, we are of the clear opinion that the controversy involved in the present case is no longer resintegra and the matter is covered by a series of judgments rendered by this Court, which have been recently quoted profusely in the judgment delivered by us on 30.6.2021 itself in Letters Patent Appeal No. 515 of 2007 ( Bavabhai Tapubhai Patel v. State of Gujarat and Others ) .

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We may beneficially quote the said observations here also to repel

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and reject the arguments of learned Senior Counsel, Mr.Anshin Desai.

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“33. Now we may discuss some of the recent judgements of this Court with some relevant extracts from the same, wherein the legal provisions with regard to effect of Notification under Section 10(3) of the Act and possession after notice under Section 10(5) of the Act and no fresh Notice required under Section 10(6) of the Act, and also mere pendency of the application under Sections 20 and 21 of the Act

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021

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RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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abating on the repeal of law on 30.03.1999 were discussed in detail and relying upon the Supreme Court’s judgements in the case of Bhaskar Jyoti Sarma (supra) and distinguishing the earlier judgement in the case of Hari Ram (supra), this Court has tried to put to rest the various shades of issues and controversy sought to be raised in these matters before this Court and that is why again a detailed discussion in the present case has become necessary:

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(i) Dineshkumar Jagubhai Patel Vs. State of Gujarat, (Page-55 Judgement) Letters Patent Appeal No.332 of 2017, decided on 05.03.2021;

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The following portions of the said judgement are quoted below for ready reference:

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“37. Firstly, the conduct of the Petitioners disentitles them from any relief and raising the said argument of the applicability of the judgements to their facts. If their case itself is founded on concocted and forged document and said litigation is pursued by purported Purchasers or land grabbers, who illegally encroached on the land of the State under the purported Sale Deeds. Therefore, this Court cannot grant any such indulgence to such litigants to raise the legal question of interpretation of the provisions of the Act or judgements.

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38. Nonetheless, even if such argument was to be considered, we do not find any merit in that too as the judgement of Supreme Court in the case of Hari Ram (Supra) stood watered down substantially and distinguished in the later judgement in the case of Bhaskar Jyoti Sarma (Supra) which we have discussed in our recent judgement delivered on 22.1.2021 in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra) which we have already quoted. The judgement in the case of State of U.P.

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v. Hari Ram (Supra) heavily relied upon by learned counsel for the Appellants, Mr.Dhaval C. Dave was decided in the context of following facts.

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Paragraph Nos.2 to 4 of the said judgement are quoted below for ready reference:

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“2. Hari Ram, respondent herein, had filed a statement on 28.9.1976 giving details of the vacant land he was holding in excess of ceiling limit prescribed under the Act, as provided under Section 6 of the Act. The competent authority under the Act surveyed the land and the respondent was served with a draft statement under Section 8(3) of the Act on 13.5.1981 , calling for objection to the draft statement within thirty days. No objection was preferred by the respondent and it was found that he was holding excess land measuring 52,513.30 sq. meters and an order to that effect was passed by the competent authority under Section 8(4) of the Act, vide his proceeding dated 29.6.1981 .

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3. The competent authority later issued a notification dated 12.6.1982 under Section 10(1) of the Ceiling Act, which was published in the Government Gazette on 12.6.1982 giving the particulars of the vacant land held by the respondent. The competent authority then issued a notification dated 22.11.1997 , which was published on the same date, stating the land shall be deemed to have been vested with the Government from 12.6.1982, free from all encumbrances. On 10.6.1999, the competent authority vide its letter dated 10.6.1999 informed the Bandobast Chakbandi Adhikar

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that the surplus land declared as per the Notification stood vested in the State Government. On 19.6.1999 , the prescribed authority issued a notice under Section 10(5) of the Act directing the respondent to hand over possession of the land declared as surplus to a duly authorized person. Aggrieved by the same, the respondent preferred an appeal No.29 of 1999 before the District Judge, Varanasi under Section 33 of the Act, contending that before passing the order under Section 8(4) of the Act, no notice, as contemplated under Section 8(3) of the Act, was served on him . The appeal was allowed and the order dated 29.06.1981 was quashed, vide judgement dated 14.12.1999 .

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4. Aggrieved by the said order, State of U.P., through the competent authority, preferred Civil Misc. Petition No. 47369 of 2000 before the High Court of Allahabad under Article 226 of the Constitution of India, and the High Court, after elaborately considering the various contentions, took the view that subsection (3) of Section 10 does not envisage, taking physical and de facto possession of the surplus land, for which proceedings under subsection (5) of Section 10 have to be followed . On facts also, the Division Bench found no reason to interfere with the order of the District Judge, and the appeal was dismissed, against which this appeal has been preferred. Following the judgement in Writ Petition No.47369 of 2000, several writ petitions were disposed of by the High Court against which appeals are pending before this Court.”

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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38.1 In the context of the aforesaid facts, the two Judges’ Bench of the Supreme Court in Hari Ram’s case (Supra) held in Paragraph Nos.42 and 43 specifically finding that the State has not produced any documents to show that the State Authorities have dispossessed the landholders from the land in question. Paragraph Nos.42 and 43 are reproduced below for ready reference :

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“42. The mere vesting of the land under subsection (3) of Section 10 would not confer any right on the State Government to have de facto possession of the vacant land unless there has been a voluntary surrender of vacant land before 18.3.1999. State has to establish that there has been a voluntary surrender of vacant land or surrender and delivery of peaceful possession under subsection (5) of Section 10 or forceful dispossession under subsection (6) of Section 10. On failure to establish any of those situations, the land owner or holder can claim the benefit of Section 3 of the Repeal Act. The State Government in this appeal could not establish any of those situations and hence the High Court is right in holding that the respondent is entitled to get the benefit of Section 3 of the Repeal Act.

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43. We, therefore, find no infirmity in the judgement of the High Court and the appeal is, accordingly, dismissed so also the other appeals. No documents have been produced by the State to show that the respondents had been dispossessed before coming into force of the Repeal Act and hence, the respondents are

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entitled to get the benefit of Section 3 of the Repeal Act. However, there will be no order as to costs.”

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38.2 These significant contextual facts are missing in the case in our hands where Sections 10(3), 10(5) and 10(6) proceedings have been established with the documents on record, which were not the facts available in the case of Hari Ram (Supra) .

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39. The judgement in the case of Hari Ram (Supra) , in our humble opinion, was watered down, explained and distinguished by the two Judges' Bench of the Supreme Court in the case of State Assam v. Bhaskar Jyoti Sarma (Supra) . The facts of Bhaksar Jyoti Sarma’s case (Supra) were noted by the Supreme Court in the following manner :

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“The father of the respondents was recorded as Pattadar of the land in dispute. In 1976, after adoption of the Urban Land (Ceiling and Regulation) Act, 1976, the father of the respondents submitted returns. After completing legal proceedings, it was concluded that the father of the respondent had land measuring 7981 sq m to be in excess of permissible limits and a declaration to that effect was issued vide statement dated 3.8.1982 and Notification under Section 10(1) dated 16.5.1984 . Thereafter, in November 1984 the father of the respondents sold the lands to 6 persons under six different sale deeds. In 1987, the appellant State issued a Notification under Section 10(3) of the Act to the effect that surplus land of the father of the respondents belonged to the Government. Consequently, no tax was collected on that land and

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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name of father of the respondents was deleted from revenue records. It was contended that possession of land was taken in 1992 . The subsequent owners challenged the proceedings but were unsuccessful up to the Supreme Court. Thereafter, in 2003, the appellant State allotted land measuring 8.03 ares to Guwahati Metropolitan Development Authority (GMDA) .

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On 12.12.2003 , the Urban Land (Ceiling and Regulation) Act, 1976 was repealed by coming into force of the Repeal Act on 6.8.2003 . On 25.12.2003, GMDA was handed over the allotted land. This action was challenged before the High Court. The Single Judge upheld the allotment in favour of GMDA. Whereas in the appeal, the Division Bench of the High Court reversed findings of the Single Judge and ordered for restoration of possession of land. Hence, these appeals.”

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39.1 On these facts, the Supreme Court held that even if Notice under Section 10(5) of the ULC Act is not served and the same is not challenged for a long period, the take over of possession would acquire legitimacy by sheer lapse of time and in such a situation, the owner or the person in possession must be deemed to have waived his right under Section 10(5) of the ULC Act. Distinguishing the judgement in the case of Hari Ram (Supra) , the Supreme Court held that any other view would give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but, only because of the fortuitous circumstance of the Repeal Act, tempting to raise the issue regarding dispossession being in

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violation of the prescribed procedure. The relevant portion of the judgement of the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra) from the Head Note is quoted below for ready reference :

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“In the ordinary course actual physical possession can be taken from the person in occupation only after notice under Section 10(5) of the Urban Land (Ceiling and Regulation) Act, 1976 is issued to him to surrender such possession to the State Government, or the authorized officer or the competent authority. There is enough good sense in that procedure inasmuch as the need for using force to dispossess a person in possession should ordinarily arise only if the person concerned refuses to cooperate and surrender or deliver possession of the lands in question. That is the rationale behind Sections 10(5) and (6) of the Act. (Para.14)

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The High Court held that the alleged dispossession was not preceded by any notice under Section 10(5) of the Act. Assuming that to be the case all that it would mean is that on 7.12.1991 when the erstwhile owner was dispossessed from the land in question, he could have made a grievance based on Section 10(5) and even sought restoration of possession to him no matter he would upon such restoration once again be liable to be evicted under Sections 10(5) and (6) of the Act upon his failure to deliver or surrender such possession. In reality therefore unless there was something that was inherently wrong so as to affect the very

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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process of taking over possession such as the identity of the land or the boundaries thereof or any other circumstance of a similar nature going to the root of the matter hence requiring an adjudication, a person who had lost his land by reason of the same being declared surplus under Section 10(3) would not consider it worthwhile to agitate the violation of Section 10(5) for he can well understand that even when the Court may uphold his contention that the procedure ought to be followed as prescribed, it may still be not enough for him to retain the land for the authorities could the very next day dispossess him from the same by simply serving a notice under Section 10(5) . It would, in that view, be an academic exercise for any owner or person in possession to find fault with his dispossession on the ground that no notice under Section 10(5) had been served upon him. (Para 15)

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The issue can be viewed from another angle also . Assuming that a person in possession could make a grievance, no matter without much gain in the ultimate analysis , the question is whether such grievance could be made long after the alleged violation of Section 10(5). If actual physical possession was taken over from the erstwhile landowner on 7.12.1991 as is alleged in the present case any grievance based on Section 10(5) ought to have been made within a reasonable time of such dispossession. If the owner did not do so, forcible taking over of possession would acquire legitimacy by sheer lapse of time. In any such situation the owner or the person in

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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possession must be deemed to have waived his right under Section 10(5) of the Act. Any other view would give a licence to a litigant to make a grievance not because he has suffered any real prejudice that needs to be redressed but only because the fortuitous circumstance of a Repeal Act tempted him to raise the issue regarding his dispossession being in violation of the prescribed procedure.

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(State of U.P. v. Hari Ram (2013) 4 SCC 280 : (2013) 2 SCC (Civ) 583, distinguished on facts.

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The fact that the dispossession was without a notice under Section 10(5) in the present case will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because the erstwhile owner that is the father of the Respondents had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so . Hence, the order of the Single Judge of the High Court is restored. (Para. 17)

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39.2 Paragraph No.17 of the said judgement (Bhaskar Jyoti Sarma (Surpa)) is also relevant and, therefore, quoted below:

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“17. Reliance was placed by the respondents upon the decision of this Court in Hari Ram case. That decision does not, in our view, lend much assistance to the respondents. We say so, because this Court was in Hari Ram case, considering whether the word 'may' appearing

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in Section 10(5) gave to the competent authority the discretion to issue or not to issue a notice before taking physical possession of the land in question under Section 10(6). The question whether breach of Section 10(5) and possible dispossession without notice would vitiate the act of dispossession itself or render it non est in the eye of the law did not fall for consideration in that case . In our opinion, what Section 10(5) prescribes is an ordinary and logical course of action that ought to be followed before the authorities decided to use force to dispossess the occupant under Section 10(6). In the case at hand if the appellant's version regarding dispossession of the erstwhile owner in December 1991 is correct, the fact that such dispossession was without a notice under Section 10(5) will be of no consequence and would not vitiate or obliterate the act of taking possession for the purposes of Section 3 of the Repeal Act. That is because Bhabadeb Sarma, erstwhile owner, had not made any grievance based on breach of Section 10(5) at any stage during his lifetime implying thereby that he had waived his right to do so.”

¶133

40. Thus, in our understanding, the judgement of the Supreme Court in the case of Hari Ram (Supra) , not only stands fully explained, distinguished and watered down by the later judgement in the case of Bhaskar Jyoti Sarma (Supra), but, the facts of the present case also are poles apart from the facts in the case of Hari Ram (Supra) and, therefore, it has no application in the facts of the present case before us.

¶134

41. Likewise, for the same reasons, the Division Bench’s

¶135

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¶137

judgement in the case of Mamtaben d/o Narottambhai Chandulal Zaveri v. Urban Land Tribunal (Supra) rendered in Letters Patent Appeal No. 1458 of 2015 , decided on 1.12.2016 , will also not apply to the facts of the present case and is of little help to the Appellants –Petitioners before us. The rival contentions of the Appellants – Petitioners and the State, as noted by the Coordinate Division Bench in the case of Mamtaben d/o Narottambhai Chandulal Zaveri (Supra) , are quoted below for ready reference :

¶138

“9. Further it is also submitted by the learned counsel that the appellant petitioner continued in possession of the land which is declared surplus and which is allegedly taken possession by the respondent authorities by drawing Panchnama. It is submitted that after dismissal of the writ petition for non prosecution when the authorities were interfering with the possession, the appellant has filed Civil Suit No.1 of 2011 in the City Civil Court at Ahmedabad, in which Court Commissioner was appointed, who had inspected the property and submitted report which shows that the appellant is in fact in physical possession of the property in question . It is submitted that in any event even according to the case of the respondent authorities, no notice has been issued as contemplated under section 10(6) of the Urban Land (Ceiling and Regulation) Act, 1976, and thus, the appellant is entitled to the benefits of section 3 of the Act. It is submitted that the alleged taking over of possession by drawing Panchnama even without issuing notice under section 10(6) of the Act is per se illegal . Such possession cannot

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¶141

be recognized to accept the plea of the respondents. It is submitted that in view of the Repeal Act all the proceedings are entitled to be lapsed, theappellant petitioner is entitled to hold the property which is allegedly declared excess, taken possession by drawing Panchnama.

¶142

Affidavit in reply is filed in the Special Civil Application. In the affidavit in reply, while denying various allegations made by the appellant petitioner, it is stated that the petition was filed in the year 1991 and the same was dismissed for non prosecution, viz for non removal of objections and the same was restored by order dated 11.04.2014. It is submitted that as restoration application was filed with gross delay of 20 years, while opposing amendment which was sought to add additional pleas, it is submitted that the appellant petitioner Mamtaben, daughter of Narottambahi Zaveri has filed declaration on 11.09.1976 and the same was scrutinized on 03.12.1982 under section 8(1) of the Act. Order under section 8(4) of the Act was passed on 13.06.1988 , based on which notification under section 10(1) of the Act was published on 11.04.1989 . While referring to dismissal order of the Appellate Authority dated 31.08.1990 it is stated that possession of the land in question admeasuring 642.45 sq meters was taken over after issuance of notice under section 10(5) of the Act on 08.02.1991. While pleading that possession of surplus land was taken in accordance with law while drawing Panchnama, it is the case of the respondents that it is not open to the appellant to raise any objection

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¶145

with regard to validity oftaking possession at this stage. With reference to the allegation of the appellant petitioner that she was not served with notice as contemplated under section 10(6) of the Act following averment is made in para 11 of the affidavit in reply:

¶146

“11. I most humbly say and submit that thereafter the occupant of the land in question was paid to hand over the possession as per notice under section 10 (five) of the act and therefore, the position (sic. possession) of the land in question was taken over by drawing Panchnama on 30.04.1991 is provided under section 10(6) of the Act.”

¶147

10. The learned Assistant Government Pleader (AGP) appearing for respondent no.3, after verifying the record, fairly admitted that notice under section 10(6) of the Act was not issued . However, possession was taken by drawing Panchnama on 30.04.1991, after issuing notice under section 10(5) of the Act. It is submitted by the learned AGP that when possession was not handed over after issuance of notice under section 10(5) of the Act it is always open for the respondents to take possession by drawing Panchnama. The learned AGP placed reliance on the very judgement which was referred to by the learned Single Judge in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others reported in (2015) 5 SCC 321.”

¶148

42. Thus, it is clear that on the concession from the

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¶151

learned Government counsel side, though no Notice under Section 10(6) of the ULC Act was issued and even though the possession was taken by drawing Panchnama on 30.4.1991 after issuing Notice under Section 10(5) of the ULC Act on 8.2.1991 , the Court proceeded to hold in favour of landholders, after distinguishing the judgement of the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra) in the following manner :

¶152

“17. We also feel that there is logic behind such provision under section 10(6) of the Act that when declarant failed to deliver possession even after issuance of notice under section 10(5) of the Act. The authorities can notify date for taking possession by issuing notice under section 10(6) of the Act. If such notice under section 10(6) of the Act is not issued, declarant owner will be in dark as to on which date possession will be taken. In view of the aforesaid provision and having regard to the judgements relied on by the learned counsel for the appellant, we are of the view that the plea of the appellant petitioner deserves to be accepted.

¶153

The respondents have not taken possession in accordance with law. As it is not in dispute that the respondent authorities have not issued notice under section 10(6) of the Act, the alleged taking over of possession on 30.04.1991 by drawing Panchnama is no possession in the eye of law , which can be reckoned to accept the plea of the respondents. Further it is also clear from the material placed on record that in Civil Suit No.1 of 2011 filed by the appellant petitioner in the City Civil Court at Ahmedabad, Court

¶154

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¶156

Commissioner was appointed. The Court Commissioner clearly revealed that the appellant petitioner is in physical and actual possession of the land in question . For the aforesaid reasons and having regard to the facts and circumstances of the case, we are of the view that the learned Single Judge has committed error in placing reliance on the judgement of the Hon'ble Supreme Court in the case of State of Assam Vs. Bhaskar Jyoti Sarma and others reported in (2015) 5 SCC 321. From perusal of the judgement of the Hon'ble Supreme Court in the aforesaid case of State of Assam, it is to be noticed that the persons claiming possession were third parties and when owners failed to challenge any proceedings taken under section 10(5) of the Act, in the present case when the very declarant before this Court challenging the orders of the authorities , it is also to be noticed that when the order restoring the writ petition and order allowing to raise additional pleas have become final and merely on the ground that alleged possession was taken by drawing Panchnama about 22 years back, is no ground to deny the statutory benefits conferred on the declarant – appellant under the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. As much as we are of the view that no possession is taken in accordance with law by issuing notice under section 10(6) of the Act , we are of the clear view that the appellant petitioner is entitled to have benefits under the provisions of the Urban Land (Ceiling and Regulation) Repeal Act, 1999. No steps can be taken further. All the proceedings stand abated.”

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¶159

43. With great respects, we may only observe and as we have held in the case of Heirs of Deceased Jethabhai Ishwarbhai (Supra) , decided on 22.1.2021 , that Section 10(6) of the ULC Act does not envisage the issuance of any Notice at all and nor the judgement of the Supreme Court in the case of Bhaskar Jyoti Sarma (Supra) said so that such a further Notice even after NoticecumOrder is given under Section 10(5) of the ULC Act is necessary, if possession is taken under Section 10(6) of the ULC Act by the State Authorities. Therefore, again, the facts of the case decided by the Coordinate Bench of this Court in the case of Mamtaben d/o Narottambhai Chandulal Zaveri (Supra) being different, we cannot apply the same to the facts of the present case.

¶160

44. We have discussed the aforesaid case laws in little more detail, even though we have indicated above that the Appellants – Petitioners are not entitled to raise these questions of law in view of its own reprehensible and abhorrent conduct in producing a false and fabricated document in the form of Exemption Order under Section 20 of the ULC Act, which the learned Single Judge as well as we have found to be a non - existent document, a false and forged document produced by a subsequent Purchaser of Government land in question under a Sale which itself stands vitiated and that too, after a delay of 19 years in a pending Writ Petition. Therefore, while we are imposing costs on the Appellants – Petitioners while dismissing the present Letters Patent Appeals, we have left it for State Authorities to file prosecution proceedings against the Appellants - Petitioners.

¶161

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¶163

45. Therefore, we do not find any substance in the arguments raised by learned counsel for the side of Petitioners – Appellants and we find the judgement and order of the learned Single Judge absolutely unassailable.

¶164

46. The present Letters Patent Appeals are accordingly dismissed with cost of Rs.50,000/ (Rupees Fifty Thousand only) to be paid by the Appellants – Petitioners for each of the two Appeals to the Respondent – State within a period of 3 months from today.

¶165

(ii) Ganesh Industrial Estate (Proprietor Vashrambhai Punjabhai Patel) through LRs Proprietor (Laxmi Saw Mills) Vs. Additinal Deputy Collector and another (Page-55 Judgement)

¶166

Letters Patent Appeal No.263 of 2013, decided on 20.04.2021;

¶167

The following portions of the said judgement are quoted below for ready reference:

¶168

19. Thus, it is clear that in absence of the Notice under Rule 5(2) of the ULC Rules to the Agreement Holder, like present Appellants herein, even if the Notice was given only to the original declarant or land holder, that would suffice and the proceedings cannot be declared to be non est because to the extent of defending the land in question from ULC proceedings, where excess or surplus land is acquired by the State to subserve the purpose of ULC Act, 1976 cannot be said to be in conflict with the interest of the original land holder – Supreme Industries Limited in the present case and the Agreement Holder has to sink or sail

¶169

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¶172

with the original land holder, so long as he does not get a Decree of Specific Performance and consequently, a Registered Conveyance Deed or Sale Deed executed in his favour under such Decree. Nothing of this sort has happened in the present case for Appellant M/s. Ganesh Industrial Estate or Vashrambhai Punjabhai Patel (Laxmi Saw Mills) .

¶173

20. On the other hand, the judgement relied upon by Mr. Percy Kavina, learned Senior Counsel of a Coordinate Bench of this Court in the case of Niranjan Maganlal Mehta (supra) is distinguishable on facts. In the said case, the facts as noted by the Division Bench of this Court as given in paras 3 and 4 of the judgement, are quoted below for ready reference:

¶174

“3. The appellants herein are the heirs and legal representatives of deceased Pannaben Niranjan Mehta, who was the original petitioner in the writ petition . The facts giving rise to the present appeal are that the Shri Niranjan Mehta , husband of the petitioner (hereinafter referred to as “ the declarant ”) had filed a statement under section 6 of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as “the Act”) in the prescribed Form No.1, on behalf of his family specifying the extent of lands held by his family members all of which are situated in Ahmedabad as under:

¶175

Sr.	Name of	Survey	Area	Manner in which
No.	village	No.		acquired

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1	City Rajpur- Hirpur	T.P. Scheme No.4, Final Plot No.73	739.12 sq. mts.	On lease for 99 years
2	*Thaltej*	46	*829.28* *sq. mts.*	*As member of* *society*
3	Khadia	2695	18.50 sq. mts.	Residential house. By succession
4	Khadia	2682	99 sq. mts.	Residential house. By succession
5	Paldi Samasth Brahmashatriy a Society	Sub-plot No.88 Bunglow No.89	635 sq. mts.	House. By succession

¶179

As per the statement filed by the declarant the total holding of the family was shown to be 2320.90 sq. mts. It may be pertinent to note that it was specified in the said form that land admeasuring 829.28 sq. mts of Vanshri Co-op. Housing Society situated at Thaltej is the self acquired property of Pannaben Niranjanbhai Mehta (hereinafter referred to as “the petitioner”) and is of her sole ownership wherein no one has any right or share. Against the column “lands held as owner” the area shown was 1568.40 sq. mts. and against the column regarding “status of the lands as to whether held as individual or HUF etc.” land admeasuring 1568.40 sq. mts was shown to be joint family property and 829.28 sq.mts of land is shown against the column “share of individual in cooperative society” . In the column for ad-hoc assessment of excess vacant land and the lands which are required to be handed over to the Government lands of Rajpur- Hirpur and Thaltej totally

¶180

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¶183

admeasuring 1319 sq. mts. were shown.

¶184

4. By an order dated 14.11.1984 passed under section 8(4) of the Act, the Competent Authority found that except for the property shown at serial No.2, all the lands were H.U.F. properties; that the definition of family includes husband, wife and their minor children, hence the land held by the wife is required to be clubbed together to determine the holding of the family; that the record indicates that the Samast Brahmakshatriya Co-operative Housing Society is the occupier of the property shown at serial No.5, hence the same cannot be taken into consideration for the purpose of computing the holding; that though the properties at serial No.3 and 4 are built up properties the same are to be taken into consideration while computing the extent of vacant land held by the applicant. The Competent Authority found that the total holding of the applicant was 1685 sq. mts. and held that the applicant was entitled to retain 1000 sq. mts. of land and declared 685 sq. mts. of land as excess vacant which is to be acquired by the State Government. The Competent Authority further held that considering the contents of the transfer agreements in respect of the properties other than the property at serial No.2, the Thaltej property at serial No.2 being the self acquired property of the wife of the declarant, he was ordering that 685 sq. mts. out of the same be handed over to the Government .”

¶185

21. On these facts, the Division Bench of this Court proceeded to hold:

¶186

“15. In the facts of the present case, it is an admitted position, which also finds support in the declaration filed

¶187

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under Section 6 of the Act, that the land in question situated in Van Shree Cooperative Housing Society admeasuring 829.25 sq.mtrs. was of the individual ownership of the petitioner Pannaben Niranjan Mehta and was her self-acquired property . Thus the petitioner was the holder of the land in question within the meaning of the said term as envisaged under the provisions of the Act. In the circumstances, as prescribed under Rule 5 of the Rules read with Section 8(3) of the Act, the petitioner being the holder of the land in question was entitled to the service of notice under sub-section (3) of Section 8 of the Act. It is an admitted position that no such notice was served upon the petitioner . In the circumstances, the proceedings under the Act to that extent would stand vitiated as being violative of the statutory provisions of Rule 5 of the Rules read with Section 8(3) of the Act.”

¶190

22. The aforesaid would clearly indicate that the facts of the said case were entirely different and do not support of the case of the present Appellants before us. The land in question, for which the wife Pannaben was held to be the sole owner , the Court held that she was entitled to a separate Notice under Section 10(5) of the ULC Act, 1976 and the husband by including the said land in question in the declaration that would not disentitle the wife from receiving a separate Notice under the ULC Act, 1976.

¶191

In the present case before us, the title of the property in question does not stand conveyed under any Registered Sale Deed or under a Decree of

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¶194

Specific Performance to the present Appellants and therefore, there is no question of entitlement of the present Appellants to the participation in the proceedings under the ULC Act, 1976 and even though the Appellants may be persons interested in the land, in absence of their rights in the property not yet crystallised, the Appellants cannot be held entitled to separate notice and consequential relief of setting aside all the ULC proceedings at their instance, particularly when they attained finality with the participation of the original land owner.

¶195

23. A legal argument based on a weak factual foundation like the one raised here, cannot obliterate, in our opinion, the conclusion of the ULC proceedings with the participation of the land holder – Supreme Industries Limited who was represented by its power of attorney holder before the Competent Authority and the Tribunal. The Tribunal, therefore, was justified, in our opinion, in rejecting the appeal filed by the present Appellants, Vashrambhai Punjabhai Patel (representing Ganesh Industrial Estate or Laxmi Saw Mills) .

¶196

24. We have already indicated above that the remand of the case by the learned Single Judge to the Tribunal was not called for and the learned Single Judge not justified, when no such Tribunal existed at that point of time also in 2013 at the time of passing of the impugned order.

¶197

25. The legal position, as discussed above, therefore, does not entitle the Appellants / Petitioners to any relief in the present case and therefore, the present Appeal as well as the Writ

¶198

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¶201

Petition deserve to be dismissed and the same are accordingly dismissed. No order as to costs.”

¶202

(iii) Ravhjibhai Chhotabhai Patel Vs. Competent Officer and others (Page-43 Judgement) Letters Patent Appeal No.941 of 2016; Decided on 25.03.2021;

¶203

The following portions of the said judgement are quoted below for ready reference:

¶204

“17. The first contention of Mr. Jitendra M. Patel, learned counsel that the four Petitioners claiming through the Will of Javerbai w/o Somabhai Mohanbhai were entitled to four units deduction, is a misconceived claim. The alleged Will dated 30.5.1974 soon after which the said testator Javerbai w/o Somabhai Mohanbhai expired on 11.7.1974 was never proved in any proceedings whatsoever. Therefore, the Competent Authority was justified in passing the order giving deduction of only one unit treating four brothers as a 'Body of Individuals' or 'Association of Persons' and no valid exception to the same could be taken. The appeal against that order also failed as time barred, as the same was filed belatedly after 2 years and 3 months as well as it was dismissed on merits relying on Full Bench decision of this Court. The writ petition filed against that order of Tribunal came to be disposed of as abated but the State's Letters Patent Appeal came to be allowed by Division Bench of this Court on 9.5.2002 but somehow at the instance of the Power of Attorney Holder, a later Co-ordinate Bench of this Court

¶205

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¶207

was pleased to recall the said order dated 9.5.2002 and directed the learned Single Judge to decide the same on merits, which the learned Single Judge painstakingly collated all the facts and dismissed the writ petition again by the detailed order with costs discussing the facts as well as the case laws cited at the bar.

¶208

18. The judgements relied upon by learned counsel for the Appellants with regard to condonation of delay viz. in the case of Haribhai Lakhubhai Seedhav vs. State of Gujarat [2010 (2) GLH 97] ; in the case of Babubhai Bhagwanji Mehta vs. State of Gujarat Special Secretary [2003 (0) GLHEL-HC 201089] ; in the case of State of Karnataka vs. Y. Moideen Kunhi (Dead) By LRs. [AIR 2009 SC 2577] , etc. are all distinguishable on facts and in the peculiar facts of those cases merely because delay came to be condoned by the Court, the said cases have no application to the facts of the present case as ultimately it remains a matter of discretion for the Competent Court or Tribunal to look into the reasons assigned for delay in filing the appeal then fairly exercising such discretion either to condone or not to condone this such delay.

¶209

19. In the present case, only ignorance of law was given out as reason for seeking delay condonation which was not found to be cogent reasons by the Tribunal and the Tribunal dismissed the appeal on 25.11.1985 not only as barred by limitation but following the Full Bench judgement of Gujarat High Court in the case of Shah Jitendra Nanalal vs. Patel Lallubhai Ishverbhai Patel [1984 (2) GLR 1001] also dismissed the appeal on merits as well holding that in

¶210

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¶212

view of Full Bench judgement of Gujarat high Court, the appeal could not be allowed, after the Notification under Section 10(3) of the ULC Act, 1976 was already issued on 9.6.1983 vesting the land in the State. The said Full bench view of Gujarat High Court clearly was binding on the Tribunal and it still holds the field and equally binds us too.

¶213

20. The Full Bench of Gujarat High Court in the case of Shah Jitendra Nanalal (supra) held as under:

¶214

“17. At the commencement of the Act, persons may be “holding vacant land in excess of ceiling limit”, but as the 'vacant land' does not automatically 'vest' in the State Government, they hold it subject to certain obligations. There are restrictions imposed concerning dealing with such land. Until a notification issued under sec. 10(3), the land does not vest in the Government and that is why we have referred to the situation as one of 'suspense' till that date. Once the land 'vests' in the State Government, there is no question of invoking the 'exemption' clause under sec. 20(1)(a) and (b) ; but until then, there is a right to move the Government for exemption and there is an 'obligation' on the Government to 'exempt' the land in case the conditions which warrant the exemption sought are satisfied. In case such conditions are shown to be satisfied, it is not as if the power of exemption could be exercised at the sweet will and pleasure of the State Government. The State Government has necessarily to be guided by the policy indicated in the provision itself and cannot

¶215

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¶217

traverse that policy. Consequently, the Government cannot also refuse to exempt if the case falls within those subsections. Therefore, until 'vesting' is under sec. 10(3) of the Act, there is always a possibility of 'defeasance of such vesting' on a motion for such exemption . If so, in a case where the person holding excess land is under a contractual obligation to convey property under an agreement to another, could he defeat that obligation by contending that transfer by him would be void and at the same time seeking exemption and obtaining benefit of such exemption in respect of such land?

¶218

18. So long as the provision declaring the transfer under sec. 5(3) as void is subject to the right to move for exemption, obtain exemption and transfer the property, the power of an owner of vacant land in excess of the ceiling limit to 'alienate' such land is dormant in him and such power could be exercised by him in case he seeks exemption, satisfies the Government that the grounds for exemption exist, and obtains such exemption. That being the case, a decree cannot be defeated on the ground that 'transfer' inter partes would not be possible. The possibility of obtaining exemption survives till the notification under sec. 10(3) of the Act is issued . That being the situation, until then, a plaintiff seeking specific performance cannot be told that the terms of the contract cannot be fulfilled. Once it is said so, the plaintiff loses his right to get a decree for specific performance, though, invoking the provisions of the

¶219

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¶221

very Act, based on which the plaintiff was told that he could not get conveyance of the property agreed to be sold to him, the owner of excess land obtains exemption and continues in possession of property and perhaps even alienates it later. We see no reason either in law or in logic to countenance such a situation. There is nothing prohibiting a decree being passed for specific performance, with, of course, such alternative remedies as may be called for in a situation where that decree may become inoperative. The decree for specific performance may be made conditional on the exemption under sec. 20(1)(a) or (b) operating . Of course, it is not for us in this reference to envisage how safeguards should be built in such a decree. Resourcefulness, of course, must necessarily find answer to possible situations.”

¶222

21. The said Full Bench view was approved by Hon'ble Supreme Court in the case of Van Vibhag Karamchari Griha Nirman Sahakari Sanstha Maryadit (Regd.) vs. Ramesh Chander [(2010 14 SCC 596] .

¶223

22. So far as the judgement in the case of Chhaganlal Trikamdas Thakker & Ors. vs. Competent Authority, Rajkot & Ors. [1994 (1) GCD 1 (Guj)] relied upon by the learned counsel for the Appellants Mr. Jitendra M. Patel on the issue of 'Tenants in Common' not to be treated as 'Association of Persons' or 'Body of Individuals' is concerned, the

¶224

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¶227

Division Bench of this Court has clearly held that it is the nature and scope of holding that is decisive on this point if individuals, with specified shares, though acquired under or through a single source or transaction of dealing, then they may not come within the ambit of 'Association' or 'Body of Individuals' holding the land. The said judgement is of no avail to the present Appellants because as already stated above the source of their own claim viz. Will of Javerbai was not proved before any Competent Authority or Tribunal and therefore, merely on the basis of declaration in Form No.6, they could not be treated as Tenants in common or co-owners of the property. This contention also loses its significance in view of Full Bench view of Gujarat High Court in the case of Shah Jitendra Nanalal (supra) in view of conclusion of ULC proceedings by Notification under Section 10(3) of the ULC Act, 1976 dated 9.6.1983 and possession taken on 19.9.1985 .

¶228

23. Another judgement, which was heavily relied upon by the learned counsel for the Appellants for condonation of delay, of the learned Single Judge in the case of Dahyabhai M. Patel vs. Competent Authority [1988 AIR 52 (Guj)] holding that the delay in filing the appeal under Section 33 of the Act should be condoned usually and liberal approach as adopted by the Hon'ble Supreme Court in the case of Collector, Land Acquisition vs. Katiji [AIR 1987 SC 1353] and the learned Single Judge condoned the delay in filing the appeal which was of 10 months.

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The said judgement of the learned Single Judge also, in our opinion, is distinguishable as the delay in the present case was not a minor delay but a huge delay of 2 years and 3 months and no sufficient reasons with the delay of condonation application were furnished by the Appellants at all except pleading ignorance of law before the Tribunal and the Tribunal, even after discussing the case laws, found that the facts did not deserve any condonation of delay and that exercise of discretion in favour of the Appellants is untenable. The Tribunal also discussed merits of the case and dismissed the appeal on merits following Full Bench decision of Gujarat High Court.

¶233

24. The observations made by the learned Single Judge in the said judgement (Coram: A.P. Ravani, J.) about Section 10(3) declaration vesting the land absolutely in the State Government free from all encumbrances and possession proceedings under Section 10(5) of the Act also being subject to appeal under Section 33 of the Act is an obiter of the learned Single Judge which is clearly contrary to the decision of Full Bench of this Court in Shah Jitendra Nanalal (supra) . Therefore, it has to be treated as impliedly overruled and no longer a good law. We need not express our further opinion in the present case on hand about the interpretation of Section 10 vis-a-vis adjudicatory process in Sections 8 and 9 subject to appeal under Section 33 of the Act and revision by the State under Section 34 of the Act which will be discussed in some other appropriate case on merits.

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Since on merits, we have found in the present case that the proceedings under the ULC Act, 1976 were concluded properly in accordance with the provisions of the ULC Act, 1976 and the Tribunal was justified in rejecting the appeal filed belatedly after 2 years and 3 months as time barred as well as on merits, we do not find any merit in the contentions raised by learned counsel for the Appellants relying upon these judgements and they are found to be distinguishable on facts, as aforesaid.

¶237

25. We are not at all satisfied with the entry of the Power of Attorney Holder at a belated stage for the same being for any bona fide reasons. Such strangers without proper right or interest in the property cannot be permitted to continue with the vexatious litigation in this manner. The Notarised (not registered) Power of Attorney in her favour dated 24.10.2009 bearing Registration No. 1187 dated 12.3.2010 in the office of Mr.A.L. Vohara, Notary, only shows that he is neither related to the executants nor he has any interest in the property but he was a 'man of confidence' for them. The Hon'ble Supreme Court deprecated such practices in the judgement in the case of Suraj Lamp & Industries Pvt. Ltd. (supra) , the relevant part which is quoted below for ready reference:

¶238

“1. By an earlier order dated 15.5.2009 [reported in Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr. - 2009 (7) SCC 363], we had

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referred to the i ll - effects of what is known as General Power of Attorney Sales (for short GPA Sales') or Sale Agreement / General Power of Attorney / Will transfers (for short SA/GPA/WILL' transfers) . Both the descriptions are misnomers as there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and Will. As noticed in the earlier order, these kinds of transactions were evolved to avoid prohibitions/conditions regarding certain transfers, to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers , **to invest unaccounted money (black money')_** _and to avoid payment of unearned increases' due to Development Authorities on transfer.

¶242

2. The modus operandi in such SA/GPA/WILL transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:

¶243

(a) An Agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future.

¶244

¶245

An agreement of sale agreeing to sell the property,

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with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.

¶249

(b) An Irrevocable General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing him to manage, deal with and dispose of the property without reference to the vendor.

¶250

¶251

A General Power of Attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a Special Power of Attorney to manage the property.

¶252

(c) A Will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).

¶253

These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of Attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally . These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets a SA/GPA/WILL as a mode of transfer , either at the instance of the vendor or at his own instance.

¶254

Ill - effects of SA/GPA/WILL transactions :

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¶258

3. The earlier order dated 15.5.2009, noted the illeffects of such SA/GPA/WILL transactions (that is generation of black money, growth of land mafia and criminalization of civil disputes) as under:

¶259

"Recourse to `SA/GPA/WILL' transactions is taken in regard to freehold properties,even when there is no bar or prohibition regarding transfer or conveyance of such,property, by the following categories of persons:

¶260

(a) Vendors with imperfect title who cannot or do not want to execute registered deeds of conveyance.

¶261

(b) Purchasers who want to invest undisclosed wealth/income in immovable properties without any public record of the transactions . The process enables them to hold any number of properties without disclosing them as assets held.

¶262

(c) Purchasers who want to avoid the payment of stamp duty and registration charges either deliberately or on wrong advice. Persons who deal in real estate resort to these methods to avoid multiple stamp duties/registration fees so as to increase their profit.

¶263

Whatever be the intention, the consequences are disturbing and far reaching, adversely affecting the

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economy, civil society and law and order . Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the government and the public . Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. This kind of transactions have disastrous collateral effects also . For example, when the market value increases, many vendors (who effected power of attorney sales without registration) are tempted to resell the property taking advantage of the fact that there is no registered instrument or record in any public office thereby cheating the purchaser. When the purchaser under such power of attorney sales' comes to know about the vendors action, he invariably tries to take the help of musclemen to sort out' the issue and protect his rights. On the other hand, real estate mafia many a time purchase properties which are already subject to power of attorney sale and then threaten the previous `Power of Attorney Sale' purchasers from asserting their rights. Either way, such power of attorney sales indirectly lead to growth of real estate mafia and criminalization of real estate transactions ."

¶267

It also makes title, verification and certification of title , which is an integral part of orderly conduct of transactions relating to immovable property, difficult, if not impossible, giving nightmares to bonafide

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purchasers wanting to own a property with an assurance of good and marketable title.

¶272

4. This Court had, therefore, requested the learned Solicitor General to give suggestions on behalf of Union of India. This Court also directed notice to States of Delhi, Haryana, Punjab, Uttar Pradesh to give their views on the matter. The four states have responded and confirmed that SA/GPA/WILL transfers required to be discouraged as they lead to loss of revenue (stamp duty) and increase in litigations due to defective title . They also referred to some measures taken in that behalf. The measures differ from State to State.

¶273

In general, the measures are :

¶274

(i) to amend Registration Act, 1908 by Amendment Act 48 of 2001 with effect from 24.9.2001 r equiring documents containing contract to transfer for consideration (agreements of sale etc.) relating to any immoveable property for the purpose of section 53A of the Act, shall be registered ; and

¶275

(ii) to amend the stamp laws subjecting agreements of sale with delivery of possession and/or irrevocable powers of attorney in favour of nonfamily members authorizing sale, to the same stamp duty as deed of conveyance. These measures, no doubt, to some extent plugged the loss of revenue by way of stamp duty on account of parties having

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recourse to SA/GPA/WILL transactions, instead of executing deeds of conveyance. But the other illeffects continued . Further such transaction which was only prevalent in Delhi and the surrounding areas have started spreading to other States also. Those with ulterior motives either to indulge in black money transactions or land mafia continue to favour such transactions. There are also efforts to thwart the amended provisions by not referring to delivery of possession in the agreement of sale and giving a separate possession receipt or an affidavit confirming delivery of possession and thereby avoiding the registration and stamp duty . The amendments to stamp and registration laws do not address the larger issue of generation of black money and operation of land mafia . The four States and the Union of India are however unanimous that SA/GPA/ WILL transactions should be curbed and expressed their willingness to take remedial steps.”

¶279

25.1 The Hon'ble Supreme Court then proceeded to give detailed reasoning for laying down the law in this regard in the following epoch-making words:

¶280

“16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A.Kamtam and Anr., (1977) 3 SCC 247 , observed:

¶281

A contract of sale does not of itself create any

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interest in,or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word transfer' is defined with reference to the word convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another....".

¶285

17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:

¶286

" Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor . It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the

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transferee. S uch a right to protect possession against the proposed vendor cannot be pressed in service against a third party ." [This clinches the issue involved before us].

¶290

18. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed) . In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred. It is thus clear that a transfer of immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred .

¶291

19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property ( except to the limited right granted under section 53A of TP Act) . According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance . Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter .

¶292

Scope of Power of Attorney

¶293

20. A power of attorney is not an instrument of transfer in

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regard to any right, title or interest in an immovable property . The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee .

¶298

21. In State of Rajasthan vs. Basant Nahata - 2005 (12) SCC 77 , this Court held :

¶299

"A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf.

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Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity . Any act of infidelity or breach of trust is a matter between the donor and the donee."

¶303

An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

¶304

Scope of Will

¶305

22. A Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivos . The two essential characteristics of a Will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. It is said that so long as the testator is alive, a Will is not be worth the paper on which it is written, as the testator can at any time revoke it. If the testator, who is not married, marries after making the Will, by operation of law, the Will stands revoked . (see sections 69 and 70 of Indian Succession Act, 1925). Registration of a Will does not make it any more effective .

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Conclusion

¶307

23. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The

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observations by the Delhi High Court, in Asha M. Jain v. Canara Bank – 94 (2001) DLT 841 , that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified , unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.

¶311

24. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of GPA sales' or SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records . What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales .”

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26. That as far as the proceeding under provisions of the ULC Act, 1976 is concerned, in the present case, we are satisfied that the same stood concluded and closed way back in the year 1985 itself and therefore, there was no occasion to claim that the possession continued to be with the land holders viz. these four brothers and mere revenue entry continuing in the name of Javerbai does not upset the declaration of vesting of land in the State under Section 10(3) of the ULC Act, 1976 nor the factum of possession taken over by the Competent Authorities under Section 10(5) / 10(6) of the ULC Act, 1976. The alleged minor irregularity of non-serving of the Notices under Section 10(5) of the ULC Act, 1976 on all the four brothers though admittedly some of such notices were served on all four of them or that the possession was taken in the absence of these brothers at the site on the date of taking over the possession, is of no consequence and the law in this regard has been settled by the Hon'ble Supreme Court in the case of Bhaskar Jyoti Sarma (supra) which has been followed by this Court in the case of Heirs of Dec. Jethabhai Ishwarbhai (supra) distinguishing the earlier decision of the Hon'ble Supreme Court in the case of Hari Ram (supra) . The relevant extract of the judgement in the case of Heirs of Dec. Jethabhai Ishwarbhai (supra) is quoted below for ready reference:

¶315

“18. Sub-section (5) of Section 10 after vesting of the surplus land with the State Government provides that the Competent Authority may, by notice in writing, order any person who may be in possession of it, to surrender or give the possession thereof to the State Government or any person duly authorised by the State Government within 30

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¶318

days of service of notice. The plain language of subsection (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Sub-section (5) notice is not in the form of a show cause notice but in the form of an order apparently because the process of hearing the objections to such declaration of surplus land is already taken care in sub-sections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was prescribed in sub-section (5) to deliver the possession within 30 days of service of the notice.

¶319

19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under sub-section (5) is done in pursuance of the notice-cum-order of the Competent Authority under Section 10(5) of the Act.

¶320

20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said notice-cum-order under Section 10(5) of the Act is, therefore, a misnomer . If the possession is handed over in compliance with the notice-cum-order under Section 10(5) of the Act to the State authorities or person nominated by the State, the proceedings under the ULC Act get concluded under Section 10(5) of the Act. If that is not

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¶323

done by the land owner in pursuance of notice-cum-order under Section 10(5) of the Act, whatever thereafter is done to take over the physical possession of the excess land in question, that can only fall under Section 10(6) of the Act, which says that if any person refuses or fails to comply the order made under sub-section (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Sub-section (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of taking over the physical possession in the manner known to law including Panchnama process and presence of the owner of the land is not a condition precedent for such taking over of the possession. The last part of sub-section (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process. Otherwise use of force is not necessary. Subsection (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these sub-sections are not necessary to be operated and invoked in each and every case. The proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.

¶324

21. Therefore, in our opinion, the arguments raised

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before us that sub-section (5) envisages voluntary handing over of possession and sub-section (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two subsections as explained above does not put these two provisions in silos or water-tight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.

¶328

22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under sub-section (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the

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¶331

present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.

¶332

23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgement as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988 . The later judgement of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.

¶333

24. As far as the question of exemption under Section 21 as sought by the Appellant land owner is concerned, we are of the opinion that it was the just an excuse or ruse to save the land in the hands of the land owners themselves as neither any concrete scheme for development of dwelling units for weaker sections was ever placed by the land owner before the Competent Authority or before this Court, nor the said application appears to have been pursued by the Appellant in an

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¶337

appropriate manner. Mere filing of the application could not have led the authorities to grant exemption to such excess or surplus land under Section 21 of the Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.

¶338

25. Thus, on the overall analysis of the facts and legal position as discussed above, we do not find any merit in the present appeal filed by the Appellant and the same is liable to be dismissed. The appeal is accordingly dismissed. No order as to costs.

¶339

26. Consequently, the Civil Application stands also dismissed.”

¶340

27. The matter also stands covered by Full Bench decision in the case of Shah Jitendra Nanalal (supra) quoted above.

¶341

28. In view of the aforesaid factual and legal position, we are satisfied that the learned Single Judge was perfectly justified in dismissing the writ petition filed by the Petitioners / Appellants and pursued later on by the Power of Attorney Holder with costs of Rs.50,000/- and we have no reason to take a different view of the matter and therefore, the present Letters Patent Appeal deserves to be dismissed. The same is accordingly dismissed and the judgement and order of the learned Single Judge dated 27.7.2016 is upheld. No further costs.”

¶342

(iv) Prabhatbhai Shivabhai Solanki Vs. State of Gujarat

¶343

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¶344

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¶345

RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

¶346

and others (Page-46 Judgement)

¶347

Letters Patent Appeal No.1281 of 2016; Decided on 23.03.2021;

¶348

The following portions of the said judgement are quoted below for ready reference:

¶349

“11. In our opinion, the learned Single Judge was perfectly justified in holding that once the Notification under Section 10(3) has been issued in the present case on 3.8.1989 vesting the land in the State free from all encumbrances and in pursuance thereof, upon issuance of Notice under Section 10(5) of the ULC Act, 1976, the possession also has been taken over by the State Government on 1.4.1992 under Section 10(6) of the ULC Act, 1976 through Panchnama Process, there was no question of deciding the pending Application under Section 21 of the ULC Act, 1976 upon remand by the Tribunal and that too should be deemed to have stood abated. The learned Single Judge has further noted in the extract of judgement quoted above that Notification under Section 10(3) of the ULC Act, 1976 and the proceedings of taking over the possession under Section 10(5) / 10(6) of the ULC Act, 1976 have not been assailed by the Petitioners at all and he is merely banking upon the pendency of the Application under Section 21 of the ULC Act, 1976 and have sought the benefit of Section 4 of the Repeal Act treating the proceedings concluded under Section 10(3) Notification as well as under Section 10(5) and Section 10(6) of the ULC Act, 1976 as null and void or non est.

¶350

12. We find considerable force in the submission made by learned Assistant Government Pleader that once the land is

¶351

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¶352

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¶353

RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

¶354

vested in the State free from any encumbrance, the question of granting exemption under Section 20 and Section 21 of the ULC Act, 1976 cannot arise and even if such proceedings as on 30.3.1999 are pending on the basis of application originally filed or upon remand by the higher authority, the same loses its significance and they are fait accompli and vesting the land in the State under Section 10(3) of the ULC Act, 1976 cannot be upset or disregarded by the Competent Authority. Such pending applications will abate and will have to be treated as rejected, as no question of granting exemption can arise thereafter.

¶355

13. We find this proposition of law concluded by the Full Bench judgement of Gujarat High Court in the case of Shah Jitendra Nanalal vs. Patel Lallubhai Ishverbhai Patel [1984 (2) GLR 1001] , in which the Full Bench of this Court dealing with the case upon reference by the Division Bench on a question whether a decree for specific performance can be granted by the Court where the proceedings under ULC Act, 1976 have been undertaken by the State and can the Defendant raise a plea in the Court that such decree for specific performance cannot be granted in view of the action of compulsory acquisition under provisions of the ULC Act, 1976.”

¶356

(v) Heirs of Deceased Jethabhai Ishwarbhai Vs. State of

¶357

Gujarat and others (Page-17 Judgement) Letters Patent Appeal No.405 of 2017;

¶358

Decided on 22.01.2021

¶359

The following portions of the said judgement are quoted below for ready reference:

¶360

Page 58 of 76

¶361

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¶362

RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

¶363

14. The avowed object of ULC Act, 1976 was to impose a ceiling on the vacant land in the urban areas and acquisition of such excess land over ceiling limit to provide the same to the State for equitable distribution of land to sub-serve common good for larger public interest and to prevent the concentration of urban land in the hands of few persons.

¶364

15. There is no dispute before us that the proceedings under Section 10(3) of the Act declaring the 1863 sq.mtrs. of land in the present case as surplus land was duly undertaken and notified by the Competent Authority vesting such land in the State Government, but, however, the dispute is regarding the possession of the same taken over by the State authorities.

¶365

16. In order to understand the said controversy in a proper perspective, let us quote Section 10 of the Act in extenso hereunder:

¶366

“10. Acquisition of vacant land in excess of ceiling limit . –

¶367

(1) As soon as may be after the service of the statement under section 9 on the person concerned, the competent authority shall cause a notification giving the particulars of the vacant land held by such person in excess of the ceiling limit and stating that –

¶368

(i) such vacant land is to be acquired by the concerned State Government; and

¶369

(ii) the claims of all person interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land, to be

¶370

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¶372

published for the information of the general public in the Official Gazette of the State concerned and in such other manner as may be prescribed.

¶373

(2) After considering the claims of the persons interested in the vacant land, made to the competent authority in pursuance of the notification published under sub-section (1), the competent authority shall determine the nature and extent of such claims and pass such orders as it deems fit.

¶374

(3) At any time after the publication of the notification under sub-section (1) the competent authority may, by notification published in the Official Gazette of the State concerned, declare that the excess vacant land referred to in the notification published under sub-section (1) shall, with effect from such date as may be specified in the declaration, be deemed to have been acquired by the State Government and upon the publication of such declaration, such land shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the date so specified.

¶375

(4) During the period commencing on the date of publication of the notification under sub-section (1) and ending with the date specified in the declaration made under sub-section (3) –

¶376

(i) no person shall transfer by way of sale, mortgage, gift, lease or otherwise any excess vacant land (including any part thereof) specified in the notification aforesaid and any such transfer made in contravention of this provision shall be deemed to be null and void; and

¶377

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¶379

(ii) no person shall alter or cause to be altered the use of such excess vacant land.

¶380

(5) Where any vacant land is vested in the State Government under sub-section (3), the competent authority may, by notice in writing, order any person who may be in possession of it to surrender or deliver possession thereof to the State Government or to any person duly authorised by the State Government in this behalf within thirty days of the service of the notice.

¶381

(6) If any person refuses or fails to comply with an order made under sub-section (5), the competent authority may take possession of the vacant land or cause it to be given to the concerned State Government or to any person duly authorised by such State Government in this behalf and may for that purpose use such force as may be necessary .

¶382

Explanation.—In this section, in sub-section (1) of section 11 and in sections 14 and 23, “State Government”, in relation to –

¶383

(a) any vacant land owned by the Central Government, means the Central Government;

¶384

(b) any vacant land owned by any State Government and situated in the Union territory or within the local limits of a cantonment declared as such under section 3 of the Cantonments Act, 1924 (2 of 1924), means that State Government.”

¶385

17. While the declaration under Section 10(3) of the Act is not

¶386

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¶387

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¶388

in dispute before us, sub-section (4) providing for transfers of land in question during the pendency of the proceeding is also not very relevant here in the present case.

¶389

18. Sub-section (5) of Section 10 after vesting of the surplus land with the State Government provides that the Competent Authority may, by notice in writing, order any person who may be in possession of it, to surrender or give the possession thereof to the State Government or any person duly authorised by the State Government within 30 days of service of notice. The plain language of sub-section (5) of Section 10 means and envisages a notice in writing in the form of an order to surrender or make over the possession to the State. Subsection (5) notice is not in the form of a show cause notice but in the form of an order apparently because the process of hearing the objections to such declaration of surplus land is already taken care in sub-sections (1) and (2) of Section 10. Once the land is vested, after dealing with such objections, in the State Government, the only activity remaining to be done is to complete the process and achieve the object of this Act, was to take over the physical possession of such declared excess land. Therefore, a notice in the form of an order was prescribed in sub-section (5) to deliver the possession within 30 days of service of the notice.

¶390

19. There is no question of any voluntary handing over of possession on the part of the land owner. Whatever is done under sub-section (5) is done in pursuance of the notice-cumorder of the Competent Authority under Section 10(5) of the Act.

¶391

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¶392

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¶393

20. The argument based on the premise of voluntary handing over of the possession within 30 days of the said notice-cumorder under Section 10(5) of the Act is, therefore, a misnomer. If the possession is handed over in compliance with the noticecum-order under Section 10(5) of the Act to the State authorities or person nominated by the State, the proceedings under the ULC Act get concluded under Section 10(5) of the Act. If that is not done by the land owner in pursuance of notice-cum-order under Section 10(5) of the Act, whatever thereafter is done to take over the physical possession of the excess land in question, that can only fall under Section 10(6) of the Act, which says that if any person refuses or fails to comply the order made under sub-section (5), then the Competent Authority may take possession of vacant land and may use such force as may be necessary for that purpose. Subsection (6) does not require any other notice or order once again to be passed by the Competent Authority. It only envisages act of taking over the physical possession in the manner known to law including Panchnama process and presence of the owner of the land is not a condition precedent for such taking over of the possession. The last part of subsection (6) is only enabling and empowering provision for the Competent Authority who may use the force for taking over the physical possession, if there is any obstruction or hindrance created by anybody including the land owner in that process. Otherwise use of force is not necessary. Sub-section (6), therefore, is not of an adjudicatory nature, but it only provides for a physical process to take de facto possession with or without the use of force. Then the proceedings under ULC Act get concluded under Section 10(6) of the Act. Both these subsections are not necessary to be operated and invoked in each

¶394

Page 63 of 76

¶395

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¶396

and every case. The proceedings under ULC Act can get concluded either under Section 10(5) or 10(6) of the Act as indicated above.

¶397

21. Therefore, in our opinion, the arguments raised before us that sub-section (5) envisages voluntary handing over of possession and sub-section (6) talks of forcible taking over possession, both are incomplete and misleading arguments. The scheme of this two sub-sections as explained above does not put these two provisions in silos or water-tight compartments. They, on the other hand, provide for a smooth and barrierless process of taking over of the possession under the 1976 Act.

¶398

22. In these circumstances, if the possession is not handed over within 30 days of service of notice under Section 10(5), it will amount to failure to comply with the order under subsection (5) and thereafter whenever the possession is taken by the State authorities, even though after 6 years, as it has happened in the present case through Panchnama process in the absence of physical presence of the land owner, it does not vitiate those proceedings which will fall under Section 10(6) of the Act. The taking over of the possession through Panchnama process in the presence of two witnesses is a well recognised process for taking over the possession in law and cannot be said to be void, non est or illegal in any manner. The land owner cannot claim that since such possession was taken over after a belated period after expiry of 30 days as prescribed in Section 10(5) of the Act, he was entitled to again a notice in this regard requiring his presence on the spot giving him option either to voluntarily surrender such possession or

¶399

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¶400

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¶401

obstruct the same. No such notice or opportunity is intended to be given under Section 10(6) of the Act. Therefore, in the present facts before us, the possession taken over by the State authority on 24.11.1993 was justified and legally undertaken through Panchnama process and in our opinion, no valid exception to the same can be taken by the Appellant.

¶402

23. As far as reliance placed on the case of Hari Ram (supra) is concerned, we are of the clear opinion that the learned Single Judge was right in distinguishing the said judgement as it is not a case before us where no notice under Section 10(5) of the Act was issued to the land owner. On the contrary, it is admitted position that such notice was given to the land owner on 4.6.1988 . The later judgement of the Hon'ble Supreme Court fully explained the purport of the decision in the case of Hari Ram (supra) in the case of Bhaskar Jyoti Sarma (supra) where even Section 10(5) notice was not given and still taking over the possession was held as valid, as quoted in extenso by the learned Single Judge and that in our respectful understanding, clinches the issue in favour of the State.

¶403

¶404

Page 65 of 76

¶405

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¶406

RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

¶407

or surplus land under Section 21 of the Act and save the said land from the rigour and scheme of the 1976 Act of taking over of excess land in the larger public interest and therefore, the learned Single Judge was right in rejecting the said contention as well.

¶408

¶409

26. Consequently, the Civil Application stands also dismissed.”

¶410

(vi) Dalwadi Muljibhai Mathurbhai Vs. State of Gujarat (Page-12 Judgement) Letters Patent Appeal No.555 of 2011; Decided on 11.02.2021;

¶411

The following portions of the said judgement are quoted below for ready reference:

¶412

“6. Learned senior counsel Mr.Mihir Thakore, also referred to the Full Bench decision of this Court in the case of Avanti Organization vs. Competent Authority and Additional Collector, Urban Land Ceiling, Rajkot and Anr. [1989 (1) GLR 586] , in which, the Full Bench of this Court held that if an exemption application under Section 20(1) of the Act is pending before the competent authority, without deciding that application, the authorities should not proceed with the further action under ULC Act, 1976 including passing of the Vesting

¶413

Page 66 of 76

¶414

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¶415

Order under Section 10 (3) of the Act vesting the excess land in the State and taking the possession under Section 10(5)/10(6) of the Act. The relevant portion of Head Notes of the said judgement of Full Bench of Gujarat High Court is quoted below and for ready reference:

¶416

“After the competent authority has disposed of the objections, the draft statement has to be altered in accordance with the orders passed on the objections. S.10(1) next requires that the competent authority is to issue a notification giving particulars of the vacant lands held by the concerned person in excess of the ceiling limits to be published in Official Gazette requiring all persons interested in such vacant lands to make their claims. After such claims are disposed of, the competent authority is empowered by S.10(3) to issue a further notification in the Official Gazette declaring that the excess vacant lands set out in the notification under S.10(1) shall, with effect from the specified date, be deemed to have been acquired by the State Government and thereupon such lands shall be deemed to have vested absolutely in the State Government free from all encumbrances with effect from the specified date. S.11 provides for payment of compensation to persons interested in such lands. It was rightly argued that if the acquisition process is allowed to be completed before the exemption application under S.20 (1) is disposed of and if the lands in respect of which exemption is claimed stand acquired and vest in the State Government, it would cause an anomalous position if the State Government ultimately decides to grant exemption in respect of the said lands. Such a situation cannot be allowed and it would therefore,

¶417

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¶418

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¶419

be in the fitness of things that the proceedings should in no case be allowed to proceed beyond the S.10(2) stage if the exemption application has not been disposed of by then. If the process is not arrested at the end of S.10(2) stage and is allowed to proceed upto S.10(3) stage, a difficult and tricky situation may arise in that, on the one hand the acquisition of the excess lands would be completed and the lands would vest in the State Government absolutely free from all encumbrances whereas on the other hand the State Government may grant exemption in respect of the very same lands from the application of the provisions of Chapter III (Ss. 3 to 24) of the Act. Such a situation can best be avoided by arresting the process at the end of S.10(2) stage. Even the learned Government Pleader fairly conceded that if the exemption application is not disposed of by then, it would not be permissible for the competent authority to proceed beyond the S.10(2) stage.”

¶420

7. On the other hand, later on Hon'ble Supreme Court in the case of Smt. Darothi Clare Parreira & Ors. vs. State of Maharashtra {(1996) 9 SCC 633], has held that even pendency of such Application is no bar to proceed under Section 10(3), vesting the land in the State and to take possession under Section 10 (5)/10(6) of the Act. The relevant extract from the said Supreme Court decision is quoted below for ready reference:

¶421

“The scheme of the Act indicates that on publication of the notification under Section 10(3) and after putting a date from which the land stands vested in the State and after publication of the notification in the Gazettee and on and from the date mentioned therein, the excess vacant land

¶422

Page 68 of 76

¶423

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¶424

stands vested in the State free from all encumbrances, subject to the decision in appeal, if any, filed accordingly to law. The previous owner stands divested of right, title and interest in the land subject to the right to make application provided under Sections 20 and 21. Therefore, it is not possible to accept the contention that the competent authority has no power to have the notification under Section 10(3) published in the Gazette until the application either under Section 20 or 21 is disposed of. The power of examination and exemption would arise only when the Government becomes the owner and the erstwhile owner seeks to obviate the hardships under Section 20 or to subserve the housing scheme for weaker sections under Section 21 as envisaged thereunder. In this case the application under Section 21 came to be filed much after the date of the vesting and publication of the notification under Section 10(3) of the Act. The effect of the vesting is not contingent upon filing an application for disposal under either Section 20 or 21.

¶425

The correctness of the order passed by the Government under Section 21 need not be gone into for the reason that it would be open to the Government and the Government have stated in their order that they have already decided to allot the land for another equally efficacious public purpose. Therefore, the Court cannot sit over the decision taken by the Government holding it illegal.”

¶426

7.1. To the same effect, later on again the Hon'ble Supreme Court reiterated the same view in Special Officer & Competent Authority, Urban Land Ceilings, Hyderabad and Anr. vs. P.S.Rao [(2000) 2 SCC 451].

¶427

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¶428

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¶429

RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

¶430

8. Firstly, we do not find any such similar facts in the present case, as no such Application is shown to be pending under Section 20 or Section 21 of the Act prior to the order under Section 10(3) of the Act was passed by the competent authority on 19.3.1985. Secondly, the Full Bench view of this Court should be deemed to be impliedly overruled by the aforesaid later Supreme Court decisions. Therefore, the said Full Bench judgement is of little avail to the appellants-petitioners in the present case.

¶431

9. Consequently, we are of the opinion that present appeal filed by the land holders and Legal Representatives of Dalwadi Muljibhai Mathurbhai against the order of learned Single Judge dated 9.12.2010 in Special Civil Application No.15043 of 2010 , has no merit and the issues being covered by the aforesaid judgement of this Bench following the Supreme Court judgement in the case of State of Assam vs. Bhaskar Jyoti Sarma [(2015) 5 SCC 321] and distinguishing the earlier judgement in the case of State of U.P. vs. Hari Ram [(2013) 4 SCC 280], the appeal is liable to be dismissed and the same is dismissed. No order as to costs.

¶432

10. Consequently, the Civil Application (For Stay) No.2 of 2011 also stands dismissed.”

¶433

(vii) Chandralal Bulchand Ambavani and another Vs. State of Gujarat and others (Page-24 Judgement) Letters Patent Appeal No.1411 of 2016; Decided on 22.02.2021

¶434

The following portions of the said judgement are quoted below for ready reference:

¶435

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¶436

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¶437

“9. Having heard the learned counsels appearing for the parties and upon perusal of the record and going through the order of the learned Single Judge, who jotted down of all the facts after detailed perusal of the original record of the Competent Authority, we find that the present Appeal is a misuse of process of law by the Appellants before this Court. We are a bit dismayed to find that instead of producing the original orders or even authenticated photocopies of the same supported by proper affidavits, the Writ Petitioners before this Court produced surprisingly only the typed copies which are full of blanks and may be even typing errors. Without proper verification and comparison with the original orders, such typed documents are not even worth the paper they were typed.

¶438

10. A feeble effort was made before the learned Single Judge as well as before us to base the claim of the Appellants, who claimed to be bona fide Purchasers under the Sale Deed alleged to have been executed by Khumanbhai or his Legal Representatives are void and nonest sales for three reasons; (i) they are in contravention of the ULC proceedings which stood concluded under the law by appropriate proceedings (2) two of the subsequent sales were apparently in conflict with the statusquo order granted by the Division Bench of this Court. Such blatant and bold effort of the private parties to execute such Sale Deeds which fly in the face of legal provisions and the Court orders have to be just kept aside and ignored without allowing any semblance of rights to be claimed by such nonchalant litigants through such illegal documents, who knocked the doors of the Court without even preparing and presenting their documents properly. The burden is thus cast upon the respondents and the Courts to look into the original records and documents produced by the other side to

¶439

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¶440

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¶441

authenticate and verify such flimsy documents. We strongly deprecate this practice of the litigants.

¶442

11. The another reason which makes Appellants before us disentitled to any relief is their locus standi. The Writ Petitioner No.1 – Baldevbhai Shivabhai Patel based his claim on an order of exemption under Section 20 of the ULC Act in favour of their Vendor Khumanbhai, which order was not even still born on the record of the Competent Authority and except a reference of the same at Serial No.2 in the preamble part of the order of the Competent Authority under Section 10(3) of the ULC Act, which reference at Serial No.2 was also found upon verification by the learned Single Judge to have been struck off, there was absolutely no material on record to claim such exemption under Section 20 of the ULC Act.

¶443

12. Assuming that any such order like AnnexureA dated 19.4.1979 under Section 20 of the ULC Act ever existed, even that has lost its significance altogether, once the Competent Authority passed an order under Section 10(3) of the Act vesting the excess vacant land in the State under Section 10(3) of the ULC Act. The exemption, if validly granted and availed could survive in favour of the party only if it was properly used it as a defence in the proceedings under Section 8(4) / 10(3) of the ULC Act before the Competent Authority. The original owner of the land in question – Khumanbhai and his Legal Representatives, though were facing these proceedings under ULC Act before the Competent Authority, they never brought it to the notice of the Competent Authority any such exemption and purportedly having sold the land in question to Baldevbhai Shivabhai Patel on 5.7.1979 and, therefore, they lost interest in the proceedings under Section 10(3) of the ULC Act, it

¶444

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¶445

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¶446

was for so called Purchaser under the Sale Deed dated 5.7.1979 , Baldevbhai Shivabhai Patel to defend in those proceedings under Section 10(3) of the ULC Act, which he never did during the contemporary period. The first challenge from his side comes after 8 years of the order under Section 10(3) of the ULC Act in 1995 before the learned Single Judge only by way of filing this writ petition, without availing the alternative remedy of a Regular Appeal under the provisions of the ULC Act.

¶447

13. That petition remained on the Board of the learned Single Judge for 21 years, who after taking lot of pains of going through the original record so meticulously and returning findings of fact on the basis of the original record, the Single Judge found that Section 20 order actually never existed and even the reference thereto in the preamble part of the order was struck out. Therefore, initial challenge by the said alleged Purchaser – Baldevbhai Shivabhai Patel under an illegal Sale Deed dated 5.7.1979 after 8 years was without any substance. But, it took 21 years for the learned Single Judge of this Court to find this truth and then, only could dismiss the Petition. The said litigant without any locus standi and apparently having lost interest in the land also, if his subsequent Sale Deeds were to be believed, kept lis alive by filing this Intra Court Appeal, still basing some alleged rights on the basis of Section 20 order in favour of Khumanbhai, his Vendor under the Sale Deed dated 5.7.1979 in his own favour.

¶448

14. The present Letters Patent Appeal is filed on 29.10.2016 and again, it is the lapse of five years after which we have been able to take up this matter for final disposal now through Video Conference with the assistance of learned counsels, during Covid19 period.

¶449

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¶450

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¶451

15. We are neither finding anything different or new, valid or of a substance, to take even a slightest possible different view from the one taken by the learned Single Judge. On the contrary, we find that the appellants, a series of so called bona fide Purchasers, have kept this lis alive against the State Government and those 83 allottees, who were allotted their lands out of such excess land vested in the State Government being kept in dark by the present Appellants. They have dealt with the land in sequence of Sale Deeds completely ignoring concluded proceedings under the provisions of the ULC Act as if those proceedings had no meaning for them. This is precisely what we wish to put down with the strong iron hands of justice and such litigants if they were to be allowed to abuse the process of law unpunished, we feel, more such litigants will join their queue.

¶452

16. The concept of the justice is based on the foundation of truth and those who do not approach the Court with truth and clean hands, do not deserve any sympathy. As far as interpretation of legal provisions of ULC Act are concerned, this Court recently gave a detailed judgement in the case of Heirs of Deceased Jethabhai Ishwarbhai v. State of Gujarat & Others rendered in Letters Patent Appeal No. 405 of 2017 , dated 22.1.2021 , following the series of Supreme Court's judgements on the provisions of the ULC Act and we find it opportune to quote some part of it for ready reference:

¶453

“18. …. 19. …. 20. …. 21. …. 22. ….

¶454

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¶455

C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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23. ….

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24. ….

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17. Therefore, the proceedings of ULC Act having been concluded is not only too late in the day for these Appellants to keep the lis alive but, we find them to have approached the Court even initially with unclean hands and without any purpose whatsoever. Therefore, the Appeal is dismissed. We would have imposed costs on all the 3 Appellants in view of aforesaid misuse of legal process, but taking a sympathetic view and with a warning for other similar litigants, we make the costs easy in this case.”

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40. We further direct the State Government to furnish compliance status Report of land utilization along with site photographs and documents of allotment if any made with respect to this case as well as aforesaid all recent judgements of Division Bench of this Court referred above, rendered since January 2021 till now within two months positively in this case and the said Report be placed for perusal in Chamber on 01.09.2021 . ”

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In view of aforesaid detailed discussion including discussing some of the judgments relied upon by learned counsel for the Appellant – Petitioner, we are satisfied that none of the contentions raised by the Appellant – Petitioner are worthy of acceptance and accordingly, they are rejected. The proceedings concluded under the provisions of the ULC Act by the concerned authorities deserve to be upheld and the present Appeal deserves to be dismissed. Accordingly, we dismiss the present Letters Patent Appeal with no order as to costs and affirm the judgment and order

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C/LPA/94/2008 JUDGMENT DATED: 06/07/2021 RAVJIBHAI PRABHUDAS PATEL SINCE DECD. THR'HEIRS V/s ADDITIONAL COLLECTOR AND COMPETENT AUTHORITY U.L.C.

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of the learned Single Judge.

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